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Will Disputes: Marley V Rawlings & ANR [2012]

February 12, 2012

Marley V Rawlings & ANR [2012] EWCA Civ 61

The cases illustrates the strict  requirements as to signing when executing a will and the terrible consequences of not doing so which in this case could lead to a Solicitors Negligence claim. The married couple, Alfred and Maureen Rawlings made an  appointment with their solicitor on 17th May 1999 for the purpose of execution of wills.

They were mirror wills which were exactly the same save for their identities. Unfortunately, in error Mr Rawlings signed his wife’s will and his wife signed Mr Rawlings will. The wills which had been drafted by their solicitor and had been witnessed by the solicitor and his secretary. Unfortunately no-one noticed the error, and in fact didn’t notice the error on Mrs Rawlings death in 2003.

It was only when Mr Rawlings died in August 2006 that the error was spotted.

The intention of the will was to leave each of the spouses estate to the other spouse on the first death and then on the second death to Terry Marley who was their carer who was not related but treated like their son..

On Mr Rawlings death in 2006, the couples two natural sons spotted that the wills were improperly executed and therefore they had died intestate. This meant they would inherit and Mr Marley would get nothing.

Proceedings were brought in the Chancery Division. The court dismissed Mr Marleys claim. The matter went to the Court of Appeal.

The relevant law cited by the judge was from the Wills act 1837.

The judge referred to section 9 Wills Act 1837 as to what is a valid will,

No will shall be valid unless –
(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) [requirements of the witnesses]

He then went on to Section 20 Wills Act 1837 as to Rectification of a will and when it can occur,

  1. “(1) If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence—
    (a) of a clerical error; or (b) of a failure to understand his instructions, it may order that the will shall be rectified so as to carry out his intentions.
    (2) An application for an order under this section shall not, except with permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out.”

The court held that only a valid will could be rectified under section 20. Mr Rawlings had not signed his will nor did it appear that the husband had intended by his signature to give effect to the will within the 1837 act. He clearly did not intend to sign his wifes will. As a consequence, as the will was not valid there was no room for rectification of the will pursuant to section 20.

Very unfortunate for Mr Marley. The case shows the importance of proper execution of the will. It now remains to be seen whether or not a claim of negligence is brought against the solicitor who had drafted the will and witnessed it.

For advice as to Will Disputes or Solicitors Negligence Claims call Carruthers Law or fill in one of our equiry forms.